Citizens United v. FEC in plain English

Posted Fri, January 22nd, 2010 11:45 pm by Lisa McElroy

By now, you have likely heard the news: The Supreme Court ruled yesterday that the government may not keep corporations (and probably, as Lyle reasons in his post yesterday, labor unions) from spending money to support or denounce individual candidates in elections. While the business entities may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast. Why? Because the First Amendment guarantees the right to free speech, and political spending is one form of that protected speech.

The four dissenting Justices were vocal and vociferous: They voiced the concern that allowing unfettered spending by rich corporations will allow those corporations to influence the outcome of elections in sweeping ways. They also explained that corporations are not human beings and should not have the same free speech rights that humans do.

As Lyle explained in his post yesterday, certain campaign finance rules remain valid after the Court's decision. Corporations spending more than $10,000 a year on such ads have to disclose the names of donors who supported them. And corporations must reveal who sponsored the ad. Only Justice Thomas did not agree with these restrictions.

The case involved the now-notorious film produced by Citizens United that sought to discredit Hillary Clinton's presidential candidacy. In ruling that Citizens United could not broadcast the film, the lower court invoked a federal law (known to most of us as McCain-Feingold) which prohibited corporations from spending money to broadcast "electioneering communications" within a certain number of days before an election. In other words, the law heavily restricted corporations' political speech in the form of spending, as well as the timing and forum of broadcasts. Labor unions had been similarly restrained under federal law for over sixth years.

The timing of the decision is exquisite. With the mid-term elections coming up later this year, the decision is sure to prompt many corporations to make room in their budgets for political spending.

Much about today's decision was not unusual: The Court was split five-to-four, along typical ideological lines (Thomas, Roberts, Alito, Kennedy, and Scalia in the majority, Sotomayor, Breyer, Ginsburg, and Stevens dissenting). The case made sweeping changes in federal election law, overturning previous Supreme Court cases and clarifying language in others.

But there were quite a few things about the Citizens United announcement and opinion that were unusual.

First, the length of the opinion. Actually, there were five opinions. Justice Kennedy wrote for the majority of five justices, and Justice Stevens wrote for the dissenters. Justices Scalia and Thomas and Chief Justice Roberts also filed separate opinions. But taken as a whole, this opinion was 176 pages. Unprecedented? Certainly not "“ big cases often result in long, detailed opinions, as well as several concurrences and dissents (and some opinions, especially in campaign finance and death penalty cases, have even approached 300 pages). But unusual? Definitely so. Remember that these opinions are dense, devoted to legal analysis and citation. Reading this opinion was an all-day job, even for those in the know. And writing it? That must have been an incredibly arduous task.

At this point, it may be useful to discuss how opinions are written at the Supreme Court. You probably know that a majority opinion is authored by a single Justice, but it stands for the opinion of the Court. Therefore, when we see Citizens United cited in the future, we won't hear people say, "Justice Kennedy said . . ." Instead, they will say, "The Supreme Court held." In other words, Justice Kennedy was responsible for expressing the views of the Court, not just his own. How did he come to write the opinion? Well, the Chief Justice (who has been on the Court for less time than all but one of the Justices in the majority, Justice Alito, but is nonetheless regarded as "senior" to the other Justices because he's the Chief Justice) would have assigned him to do so. When the Chief is in the majority, he assigns the opinion to another Justice in the majority (or sometimes to himself). He chooses the author of the opinion based on a number of factors, such as whether a Justice has completed his/her workload, whether a Justice is due for his/her turn in writing an opinion (the Justices traditionally try to spread out the load as evenly as possible), and even how likely it is that authorship will keep a Justice in the majority. When the Chief is not in the majority, the senior justice in the majority makes the assignment.

Now, the Justices author the opinions, but they have lots of help. Every Justice is allowed to have up to four law clerks to help him/her with his opinion writing, among other tasks. Law clerks are usually recent law school graduates, most of whom were at the top of their respective classes at some of the best law schools in the country. Some Justices ask the clerks to write a first draft of an opinion, then give it to the Justice to revise. Some do the reverse. At least one Justice is widely known to employ both methods, drafting his own opinions but asking the law clerks to do the same, then deciding how to combine the two. At the very least, law clerks research the legal issues exhaustively and talk through the reasoning in an opinion with their Justice. For a case of this magnitude, that entailed countless hours of work.

What all of this means in terms of Citizens United is that there are some mighty tired law clerks and Justices out there somewhere. This case has been a long haul, from the cert. grant last Term to the first argument (also last Term) to the re-argument in September to this behemoth opinion, which certainly went through many drafts.

On to unusual detail number two. As mentioned above, this case has been going on for quite some time. In fact, it has even survived a Justice (Justice Souter, who retired in June) and lived to see a new one (Justice Sotomayor, who took her seat on the SCOTUS bench this summer). While it does happen from time to time that a case will be at the Court that long, it certainly does not happen often. The Justices try to conclude their work in deciding cases by late June every year. Often, this means that we see a slew of opinions in June "“ an exciting time for SCOTUS watchers. But in this case, the Court instead asked for re-argument this fall, meaning that they heard argument in the case twice. Why did the Court ask for the re-argument? Essentially, to address additional issues beyond the narrow ones on which the Court originally granted cert., including whether the Court should overrule precedential cases upholding restrictions on political spending by corporations.

Court watchers have been predicting for weeks that this decision would come down any minute. Now that we have seen the opinion, particularly the lengthy dissent, we can understand why it took quite some time. And the truth is that the Court makes its own schedule. It takes its time to make sure that an opinion is just right before announcing it; that makes sense, given how important the cases before the Court are and how far reaching the decisions will be.

So, unusual detail number three. The Court announced on Wednesday that it would have a morning session on Thursday, on a day with no arguments scheduled. Decisions are usually announced and opinions released on days when arguments take place; if you go to the Court to hear an argument, you may be lucky enough to be there on an opinion day, and you will hear one of the Justices announce the decision of the Court from the bench. There are also several days in non-argument weeks when the Justices announce orders and opinions. But given that today was supposed to be a work day for the Justices, rather than a day when they headed into the courtroom, Court watchers could guess that it was going to be an important decision coming down, and indeed many thought the time had certainly come for the decision in Citizens United.

Finally, unusual detail number four. Justice Stevens read his dissent (or some of it "“ if he had read all ninety pages, we'd still be in Court) from the bench. While the author of the majority opinion will often select a key portion of that opinion to read from the bench, it is quite unusual for a dissenter to do so. When it happens, it's a sign that the dissenter feels very strongly that the Court got it wrong. Because the Court has a stake in operating as a uniform body "“ which is what keeps the rule of law alive, after all "“ dissenters generally "respectfully" dissent, both in writing (check out the last line of almost any dissenting opinion) and in conduct.

For more details on the substance of what the Court decided yesterday, check out Lyle's informative posts on the opinion, as well as the links collected by Erin to other media sources.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

Download our App in the Apple Store

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.